No doubt you know someone who faced a huge legal bill from their family lawyer. If you know someone whose marriage or relationship is breaking up, they don’t have to spend a fortune on lawyers. There are steps they can take to keep legal costs to a minimum while still getting sound advice and ending up with a binding property settlement.
First things first – They should get some advice
As an essential first step, they should get independent legal advice about the likely property settlement outcomes in their case and a range within which to negotiate with their former spouse. By all means, they may want to talk to separated friends about what happened for them.
Similarly, go to a free seminar about how family law works, if one is available. But remember, those things are not a substitute for legal advice directed to specific circumstances. Everyone’s situation is different, so the outcome in your friend’s matter may bear no relation to the likely result in another matter. The general information provided at a seminar will no doubt be useful, but cannot address your individual position.
In addition, your friend should not rely on the legal advice their ex-partner says he or she received. That may prove to be a very false economy. Further, a person should never tell the ex what legal advice they have received. That could risk the confidentiality of discussions with their lawyer.
Next – Make sure your friend has enough information
After getting legal advice and before embarking on settlement discussions, the person needs to be reasonably sure they have enough information about their (and their ex’s) assets and liabilities, and their values. If this is not certain, they should discuss this with their lawyer about steps that can be taken to get the missing information. For example, free market appraisals of the family home would be very useful.
Then – Have a kitchen table conversation
If your friend and their ex are on speaking terms, they should sit down, around what used to be their joint kitchen table for example, to discuss how to divide up their property. Maybe more than one “kitchen table conversation” will be necessary. But, armed with your legal advice, asset and liability information, and negotiating range, they may be able to reach an agreement.
What if a kitchen table conversation isn’t possible?
Not all separating couples can sit down together and have a civil conversation about how to divide up their assets. Indeed, if family violence, threats, bullying or other power imbalance was present in your relationship, it would be a bad idea to conduct such negotiations.
However, there are still things your friend can do to try to reach an agreement, while aiming to keep costs to a minimum. For example, they could agree to bring support people to your settlement discussions. If so, you should agree up front on those people’s roles and who they would be.
Another option would be for both to instruct their lawyers to arrange an early settlement conference. That is often a quicker, more cost-effective way of reaching a settlement than the lawyers writing countless letters to one another.
Failing that, discuss with the lawyer about the possibility of formal mediation or the collaborative law process.
They have reached an agreement – Now what?
It’s important not to make the mistake of thinking that once an agreement is reached, the process is over and you don’t need to incur more legal costs. Just because they have reached a property settlement agreement does not mean the agreement will be legally binding. If the agreement isn’t legally binding, years down the track one party could change their mind and go to Court seeking more money.
For it to be legally binding, the agreement must be documented properly. Something the couple has written out and signed will, unfortunately, not be sufficient.
There are only two legally binding ways to properly document a property settlement agreement – Consent Orders or a Binding Financial Agreement (BFA). Sometimes, a Child Support Agreement is also necessary.
Consent Orders
Consent Orders are usually cheaper and more straightforward. They set out the terms of the agreement, are signed by both parties and are stamped by the Court. Once stamped, the document becomes legally binding, enforceable Court Orders.
It is not recommended that your friend try to save money by preparing their own Consent Orders. Incorrect wording may mean the Orders have unintended consequences or are difficult, even impossible, to enforce. However, they could save some money by having only one lawyer prepare and stamp the Orders. Whether that is appropriate will depend on the other person’s ability to represent him or herself at that stage.
Binding Financial Agreement
Consent Orders are not always the most appropriate way to document a property settlement. Indeed, if the parties want to record a binding agreement about spouse maintenance, it will need a BFA instead or as well.
A BFA is a contract recording your agreement. To become legally binding, it must be prepared by lawyers, contain certain specific terminology, and both parties must receive independent legal advice about it. Consequently, a BFA can be more expensive although it is sometimes necessary.
Conclusion
It’s understandable that people fear big legal bills. However, if these steps are followed and the parties are careful about how they involve lawyers in their family law matter, the property settlement needn’t cost a fortune, while still being based on legal advice specific to their circumstances and resulting in a binding, legally enforceable agreement.
If you or someone you know wants more information or needs help or advice, please contact us on 08 9221 5775 or email enquiries@klimekwijay.com.